Innogen  ·  Publications  ·  Journal articles
Rhetoric or Reality: What is the Legal Status of the Consent Form in Health-related Research?

Laurie, G   Postan, E.

Medical Law Review   21 (Summer) 371-414

August 2013   (First published online October 2012)

http://www.ncbi.nlm.nih.gov/pubmed/23055572

This article addresses the unresolved conundrum of the legal status of consent forms used in research involving tissue samples or personal data. It identifies which rights participants might have by virtue of any consent form they have signed and which legal remedies might be available to them should the research depart from the terms of the original consent. The paper demonstrates that, although the legal status of consent forms is not clear in the UK, the landscape is evolving. We suggest that the growing legal protection afforded to autonomy and judicial recognition of individual property rights in tissues may offer opportunities for remedies in law where the regulatory regimes controlling uses of human tissue and personal data do not. However, we argue that in the governance of research relationships-which depend crucially on trust-resort to legal remedy may be undesirable. We suggest that treating consent as a one-off event that can be effectively captured in a written document-as the law tends to do-is an inappropriate and counter-productive approach. The aims of ethical research governance will be better served by seeing consent as continuing relational process, requiring on-going mutual respect, opportunity for communication, and accommodation of changing circumstances. The consent form is merely a framing instrument and only the starting point for a partnership that will evolve over time. Crucially, the limits of consent must be recognised in the design and governance of modern research practices. The article concludes with recommendations to reconceive consent in these terms.